[Cite as Philpott v. Pride Technologies of Ohio, L.L.C., 2015-Ohio-4341.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO

CHRISTOPHER PHILPOTT, 

Plaintiff-Appellee, 

 vs. 

PRIDE TECHNOLOGIES OF OHIO, 

LLC, 

 Defendant-Appellant. 

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: 

: 

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: 

 APPEAL NO. C-140730 

 TRIAL NO. A-1403566 

 

 O P I N I O N.

Civil Appeal From: Hamilton County Court of Common Pleas 

Judgment Appealed From Is: Reversed and Cause Remanded 

Date of Judgment Entry on Appeal: October 21, 2015 

Katz, Greenberger & Norton LLP and Stephen E. Imm, for Plaintiff-Appellee, 

Wood & Lamping LLP and Dale A. Stalf, for Defendant-Appellant. 

Please note: this case has been removed from the accelerated calendar. 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

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FISCHER, Judge. 

{¶1} Defendant-appellant Pride Technologies of Ohio, LLC, (“Pride 

Technologies”) appeals the decision of the trial court overruling its motion to stay or 

dismiss the proceedings filed against it by plaintiff-appellee Christopher Philpott, 

and compel Philpott to arbitrate his claims. Because Philpott failed to demonstrate 

that the costs of arbitration would be prohibitively high as to render the arbitration 

provision in his contract with Pride Technologies substantively unconscionable, and 

Pride Technologies had not waived its right to arbitrate the dispute, we reverse the 

judgment of the trial court. 

The Parties’ Attempted Arbitration 

{¶2} Philpott had been employed by Pride Technologies for eight years, 

ending in 2012. That same year, Pride Technologies filed a demand for arbitration 

with the American Arbitration Association (“AAA”) in New York against Philpott in 

accordance with Pride Technologies’ “Executive Employment Agreement,” 

demanding over $190,000 from Philpott. Philpott filed a counterclaim in the 

arbitration, arguing that Pride Technologies had failed to credit his profit-sharing 

account approximately $48,000, as required by the parties’ “Profit Sharing Unit 

Agreement.” 

{¶3} In May 2014, a month before the scheduled arbitration, AAA 

suspended the arbitration in accordance with its rules, because Philpott had not paid 

his portion of costs and fees, totaling $11,950. Philpott informed Pride Technologies 

and the arbitrator that he could not afford to pay the nearly $12,000 bill. The 

arbitrator made clear that Pride Technologies, as the claimant, could pay Philpott’s 

share of the fees to avoid suspension. Pride Technologies refused to pay Philpott’s 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

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share and expressed doubt as to Philpott’s representation that he could not afford to 

pay the fees. Pride Technologies also stated its intention to file suit in New York 

state court should Philpott refuse to pay. 

{¶4} A week before the scheduled arbitration hearing, the parties received 

an email from an AAA representative, stating that Philpott’s share of the fees 

remained unpaid, and that AAA would cancel the hearings unless Philpott or Pride 

Technologies paid the remaining balance. The email also indicated that the 

arbitrator would work with the parties to reduce fees. Apparently, neither side 

responded to the arbitrator’s offer, because Philpott filed the instant action in the 

Hamilton County Court of Common Pleas on June 17, 2014. 

Motion to Stay Proceedings and Compel Arbitration 

{¶5} Philpott’s complaint mirrored his counterclaim in the arbitration, and 

Philpott attached a copy of the Profit Sharing Unit Agreement to the complaint. In 

response to Philpott’s complaint, Pride Technologies filed a motion to stay or dismiss 

the proceedings and compel arbitration, arguing that Philpott’s claims must be 

arbitrated in accordance with the arbitration clause in the Profit Sharing Unit 

agreement, which provided: “Any dispute arising between the parties concerning the 

interpretation, alleged breach or enforcement of this Agreement shall be submitted 

to final and binding arbitration pursuant to the employment rules of the [AAA] 

before a single arbitrator in New York City.” 

{¶6} Philpott responded to Pride Technologies’ motion to compel 

arbitration with his affidavit opposing the motion. Philpott argued that Pride 

Technologies had waived the arbitration clause in the Profit Sharing Unit Agreement 

by failing to pay Philpott’s unpaid share of the arbitration fees when it had the ability 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

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to do so. Philpott stated that he had sustained a significant period of unemployment 

after leaving Pride Technologies, and that he supported his wife and three children, 

two of whom had severe disabilities. In Pride Technologies’ reply brief, it denied 

that it had waived the arbitration provision by refusing to pay Philpott’s share of the 

arbitration fees because the AAA rules permitted, but did not require, a party to pay 

the opposing party’s fees. Pride Technologies argued that Philpott had failed to 

demonstrate an inability to pay, and that Philpott had been a well-paid executive 

employee, receiving an annual salary of $175,000 at Pride Technologies. Pride 

Technologies also argued that Philpott could have sought a reduction in fees as 

offered by AAA, but did not. Finally, Pride noted that Philpott had failed to show 

that the arbitration clause was otherwise unenforceable for reasons of fraud or 

unconscionability. 

{¶7} The trial court held a hearing on Pride Technologies’ motion. At the 

hearing, Philpott told the court that Pride Technologies had filed suit against him in 

New York state court in July 2014, which, Philpott argued, further reinforced that 

Pride Technologies had waived the arbitration clause. After listening to argument by 

counsel, the trial court and the parties agreed that Philpott’s asserted inability to pay 

the arbitration fees would require discovery and further evidence; therefore, the trial 

court agreed to continue the matter for a decision on the waiver issue, and, if 

necessary, reach the “unconscionability” issue. 

{¶8} The trial court issued a decision denying Pride Technologies’ motion to 

compel arbitration. In its decision, the trial court stated, “[t]he troublesome part of 

all of this are the fees required by the AAA. Simply put they seem extraordinary. * * * 

If an alternative dispute resolution is of such a nature and/or expense that an 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

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aggrieved party cannot participate, then it is invalid.” It is from this decision that 

Pride Technologies now appeals. 

Pride Technologies’ Appeal 

{¶9} In a single assignment of error, Pride Technologies argues that the trial 

court erred in overruling its motion to compel arbitration. 

{¶10} As an initial matter, we address whether Ohio or New York law 

governs the parties’ dispute. The Profit Sharing Unit Agreement contained the 

following governing law clause: “The validity, interpretation, performance and 

enforcement of this Agreement and the Profit Sharing Member’s rights in, to and 

under the Profit Sharing Units shall for all purposes be governed by the laws of the 

State of New York without giving effect to the principles of conflicts of laws thereof.” 

{¶11} The law of the forum state controls procedural remedies, such as 

motions to enforce arbitration. See Guider v. Lci Communications Holdings Co., 87 

Ohio App.3d 412, 417, 622 N.E.2d 415 (10th Dist.1993), citing Shafer v. MetroGoldwin-Mayer Distrib. Corp., 36 Ohio App. 31, 172 N.E. 689 (10th Dist.1929). By 

contrast, the law of the state chosen by agreement of the parties typically governs 

substantive issues regarding contract enforcement. See Wise v. Zwicker & Assocs., 

P.C., 780 F.3d 710, 715 (6th Cir.2015). A choice-of-law determination becomes 

unnecessary, however, if the laws of each forum would reach the same result. 

Holliday v. Ford Motor Co., 8th Dist. Cuyahoga No. 86069, 2006-Ohio-284, ¶ 19. 

Here, the parties contend that New York and Ohio law treat enforcement of an 

arbitration clause over objections of waiver or unconscionability similarly. Thus, we 

will apply Ohio law in resolving Pride Technologies’ appeal. 

 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

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Review of Agreements to Arbitrate 

{¶12} Ohio’s Arbitration Act, R.C. Chapter 2711, provides two methods for 

enforcing arbitration agreements: 1) R.C. 2711.02, which allows for an order staying 

proceedings pending arbitration, and 2) R.C. 2711.03, which allows for an order 

compelling arbitration. Jarvis v. Lehr, 1st Dist. Hamilton No. C-130832, 2014-Ohio3567, ¶ 8. Ohio law favors arbitration such that if a claim falls within an agreement 

to arbitrate, a presumption in favor of arbitration arises. Taylor Bldg. Corp. of Am. 

v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 27. Ohio’s 

Arbitration Act also embodies this presumption in favor of arbitration in R.C. 

2711.01(A), which provides that “[a] provision in any written contract * * * to settle 

by arbitration a controversy that subsequently arises out of the contract * * * shall be 

valid, irrevocable, and enforceable, except upon grounds that exist at law or in equity 

for the revocation of any contract.” 

{¶13} An order granting or denying a stay of proceedings pending arbitration 

is a final order as provided in R.C. 2711.02(C). Rippe & Kingston Co. PSC v. Kruse, 

1st Dist. Hamilton No. C-130587, 2014-Ohio-2428, ¶ 14. As a general matter, we 

review the denial of a motion to stay under R.C. 2711.02(B) for an abuse of 

discretion. Id. However, where the enforceability of an arbitration agreement raises 

questions as to whether a party’s actions constitute a waiver of the right to arbitrate 

as a matter of law, or as to whether an agreement to arbitrate is unconscionable, we 

review the trial court’s order de novo. See Taylor Bldg. at ¶ 31-36; Snider v. S. Forty 

Homes, Inc., 5th Dist. Muskingum No. CT2007-0027, 2008-Ohio-385, ¶ 8. 

{¶14} In its appeal, Pride Technologies argues that the trial court erred in 

denying its motion to stay the proceedings and compel arbitration on the ground of 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

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excessive costs because Philpott failed to set forth any evidence demonstrating that 

enforcement of the arbitration provision would be unconscionable. We agree. The 

Ohio Supreme Court has noted that “an arbitration clause will not be held 

unenforceable based on unsupported allegations of prohibitive costs.” Taylor Bldg.

at ¶ 57-59, citing Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 90-91, 

121 S.Ct. 513, 148 L.Ed.2d 373 (2000). Therefore, a party seeking to avoid 

enforcement of an arbitration provision because of prohibitive costs must either 

come forth with evidence regarding inability to pay the arbitration costs and fees, or 

demonstrate that arbitration costs and fees are substantially higher than the costs of 

litigating in court. See Norman v. Schumacher Homes of Circleville, Inc., 2013-

Ohio-2687, 994 N.E.2d 865, ¶ 26 (4th Dist.). 

{¶15} With regard to his financial situation, Philpott stated that he had 

sustained a significant period of unemployment after leaving Pride Technologies, 

and that he supported his wife and three children, two of whom had severe 

disabilities. However, Philpott’s financial circumstances were not otherwise made 

part of the record. As to the costs of arbitration, Philpott provided the court with 

evidence of arbitration costs, but did not provide any comparison of those costs to 

the costs of litigating in court. Moreover, the record indicates that the arbitrator 

offered to work with the parties to reduce fees, but that offer apparently had been 

rejected by Philpott, who filed the instant suit instead. Therefore, Philpott failed to 

demonstrate that the costs of arbitration would be prohibitively high as to render the 

arbitration provision substantively unconscionable. See Taylor Bldg. Corp., 117 Ohio 

St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, at ¶ 59. 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

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{¶16} Philpott urges this court to affirm the trial court because, Philpott 

argues, Pride Technologies waived its right to arbitrate the dispute. A party seeking 

to demonstrate that an opposing party waived an arbitration clause must show that 

the opposing party knew about the right to arbitrate, and acted inconsistently with 

that right as shown by the totality of the circumstances. Hilton v. Mill Rd. Constr. II, 

Ltd., 1st Dist. Hamilton No. C-030200, 2003-Ohio-7107, ¶ 7. In considering whether 

the totality of the circumstances warrant a finding of waiver, courts have considered 

1) any delay in the requesting party’s demand to arbitrate * * *; 2) the 

extent of the requesting party’s participation in the litigation prior to 

its filing a motion to stay the judicial proceeding, including a 

determination of the status of discovery, dispositive motions, and the 

trial date; 3) whether the requesting party invoked the jurisdiction of 

the court by filing a counterclaim or third-party complaint without 

asking for a stay of the proceedings; and 4) whether the nonrequesting party has been prejudiced by the requesting party’s 

inconsistent acts. 

(Internal citations omitted.) Harsco Corp. v. Crane Carrier Co., 122 Ohio App.3d 

406, 414, 701 N.E.2d 1040 (3d Dist.1997). 

{¶17} In this case, Pride Technologies unquestionably knew about its right to 

arbitrate, as it sought to arbitrate the dispute even prior to Philpott’s filing of the 

instant complaint. The question then becomes whether Pride Technologies has acted 

inconsistently with its right to arbitration. Prior to the filing of Philpott’s complaint 

in the trial court, Pride Technologies initiated arbitration proceedings against 

Philpott in New York. After Philpott failed to pay his share of the arbitration fees 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

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and costs, Philpott filed the instant suit. Pride Technologies responded to the 

complaint with its motion to enforce arbitration, prior to answering or conducting 

any discovery. Thus, the totality of the circumstances indicates that Pride 

Technologies has not acted inconsistently with its right to arbitration. 

{¶18} Philpott contends that Pride Technologies had the opportunity to pay 

Philpott’s share of the arbitration fees and costs to avoid suspension under the AAA 

rules, and because it did not, Pride Technologies’ actions demonstrate a waiver of its 

right to arbitrate. We disagree. First, nothing in the parties’ contract required Pride 

Technologies to pay Philpott’s portion of the arbitration costs. Second, although the 

AAA rules permitted Pride Technologies to pay Philpott’s share of the arbitration fees 

and costs to avoid suspension, nothing required Pride Technologies to front the 

entirety of the arbitration fees or costs for Philpott. Philpott may not like the AAA 

rules and fee structure, however, he agreed to be bound by them to the exclusion of 

other arbitration entities. Moreover, we are not persuaded that Pride Technologies’ 

suit in New York state court indicates a waiver of the right to arbitrate. Pride 

Technologies’ suit in New York state court followed Philpott’s initiation of the 

current suit, and Pride Technologies has steadfastly maintained its desire to 

arbitrate. 

{¶19} In conclusion, the record fails to support Philpott’s argument that 

Pride Technologies has waived its right to arbitrate the instant dispute, and Philpott 

has failed to demonstrate that arbitration would be so cost prohibitive as to become 

unconscionable. Therefore, in accordance with the strong presumption in Ohio law 

favoring arbitration, we sustain Pride Technologies’ assignment of error. The 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

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judgment of the trial court is reversed. We remand the matter to the trial court to 

enter an order staying the proceedings and compelling arbitration. 

Judgment reversed and cause remanded. 

HENDON, P.J., and MOCK, J., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.